Letter to Brian Pallister, Premier of Manitoba

Campaign for the Abolition of Solitary Confinement

Hon. Brian Pallister
Premier
Province of Manitoba
450 Broadway
Winnipeg, MB R3C 0V8
November 2, 2020

Dear Premier Pallister:

Re: Solitary Confinement

We wish to raise with you our concerns, widely shared by the public, on the continued use of solitary confinement in corrections. Our aim is abolition, but we would hope to see major reforms achieved even short of that goal. We expect that the gross overrepresentation of Indigenous persons in solitary (already over-represented in the prison population) will not be curtailed short of legislation to abolish solitary.

As you may know, the federal government has abandoned its appeals on two major decisions on solitary. This means that the ruling of the Ontario Court of Appeal, written by Justice Benotto, stands, that for solitary over 15 days, legislative standards are inadequate, and that the risk of harm “outrages standards of decency and amounts to cruel and unusual punishment.” While, technically this is a decision regarding federal institutions, our understanding is that all jurisdictions are effectively bound by it.

The Supreme Court of Canada had agreed to hear this and the B.C. appeal on (Leask). This, we expected, would result in a concerted denunciation of solitary, at least over 15 days. To avoid this embarrassment, the federal government withdrew, using the excuse of effectively abolishing the use of solitary in federal prisons by the establishment of “structured intervention units.” This approach, through Bill C-83, is now in force and its effects are not yet known. We would predict that suicides and self-harm will decrease with its use, but we share the skepticism of many experts on corrections, that this is more of a cosmetic name change, with loopholes, than a full-scale elimination of the practice. Firm limits are lacking.

Second, you are doubtless also aware of the recent legislation adopted by Yukon, to limit solitary by law to 15 days. When you decide to draw up a new act for Manitoba, we urge you to include a ban on the use of solitary for inmates with psychiatric illness, pregnant women and those who have recently given birth, inmates with physical disabilities and the young (under 25 – those who suffer the worst long-term consequences from solitary). A limit of 10 days initially, to drop to five, would be better than 15 days, a number not based on any evidence that it is adequate to avoid harmful consequences. However, the 15-day limit now is, in effect, the law for all jurisdictions. It is hard to imagine any court deciding that prolonged solitary would be permissible in a provincial or territorial prison, though not in a federal one.

Third, courts are increasingly making judgments against governments for their use of solitary. Ontario Superior Court Justice Perell upheld a class-action suit, awarding $20 million in damages, citing the devastating psychological consequences. While this was a suit against Corrections Canada, provinces could be sued in a similar fashion. Perell’s decision showed contempt for the excuses made for solitary. He referred to it as “a dungeon inside a prison.”

As you know, Manitoba has undergone scrutiny for both its treatment of adults and youth in solitary confinement in the past several years. In 2019, investigations by the Manitoba Advocate for Children and Youth, Daphne Penrose, revealed that from September 2015 to August 2016 more than one in three youth entering custody experienced segregation. Further, more than one-third of those who entered segregation remained there for over 24 hours, and one boy was held in solitary confinement for 400 consecutive days.

Also, in 2016, nearly one in 10 adult inmates in Manitoba were held in segregation. Then in 2017, data obtained through freedom of information requests revealed that, in a provincial women’s jail, 27% of documented placements in administrative segregation were listed as for “overflow” and 32% included no documented reason whatsoever. This year we learned that youth were being held in segregation in adult cells at the Winnipeg Remand Centre as they awaited bail hearings (although this issue has since been remedied).

Finally, relevant data are needed. We ask that you provide annual or the most recent reports of the number incarcerated, male and female, for Manitoba, the number placed in solitary, and number of days. Specifics are needed for Indigenous persons and inmates of colour (both are known to be over-represented). Clearly, to track progress, firm numbers are needed.

For reference purposes, we offer a summary of categories of data published by the Office of the Correctional Investigator, Government of Canada:

  • Segregation admissions overall (voluntary and involuntary)
  • Segregation admissions per individual (voluntary and involuntary)
  • Length of stay in segregation
  • History of self-injury among those admitted to segregation
  • Number of offenders admitted to segregation at least once in a given fiscal year
  • Prevalence of a history of segregation in particular populations
  • Use of force incidents in segregation context
  • Prevalence of segregation or segregation-like conditions to protect individuals requiring accommodations for their gender identity
  • Complaints regarding segregation
  • Prevalence of persons with identified mental health or ability issues in segregation
  • Deaths in custody that occur in segregation
  • Prevalence of youth in segregation and reason why.

We look forward to hearing from you or the appropriate Minister.

On behalf of the Campaign,

Sincerely,
Brenda Baker
Paul Copeland CM
Pauline Couture
John Godfrey
Kate Kitchen
Myim Bakan Kline
Patrick Lesage
Jeremy Madden
Lynn McDonald
Ian Morrison
Shannon Sampert
Bev Swerling

Please respond to: ian@coalesce.ca

cc: Hon. Cliff Cullen, Minister of Justice and Attorney General
Hon. Eileen Clark, Minister of Indigenous and Northern Relations
Wab Kinew, Leader of the Opposition
Nahanni Fontaine, Opposition Justice Critic
Ian Bushie, Opposition Critic for Indigenous Affairs

To Mike Farnworth and David Eby, BC government ministers

Hon Mike Farnworth, Minister of Public Safety and Solicitor General and Hon. David Eby, Attorney General, Government of British Columbia

18 January 2020

Dear Mr Farnworth and Mr Eby

We were encouraged to hear that the B.C. government is looking at the issue of solitary confinement (separate confinement), possibly by legislation, possibly by regulation. Naturally we would prefer legislation, as it is harder to undo it when put into place than regulations.

You are aware that Yukon is the first jurisdiction to legislate limits on solitary: 15 days at any one time, a 5 day space between, and a maximum of 60 days over a 365-day period. This is the same as that legislated by the Ontario government in 2018, just before the provincial election that resulted in a change of government, hence no implementation. (The NDP supported the then Liberal government’s bill, the Progressive Conservatives, now the government, opposed it.)

The Yukon legislation is a start, but we hope that BC will go further, at the very least to add a complete ban for the use of solitary for those under 25, for young people are more likely than older to suffer long-term consequences of such isolation.

We would urge you to reduce the limits, say 10 days, for a maximum of 40 days per year. You perhaps realize that the 15-day limit, the “Mandela Rules,” is not based on any evidence that 15 days is a safe limit for solitary, that harm only occurs after it. The 15 days was evidently a compromise, for jurisdictions that had not had any limits. Nelson Mandela himself never proposed anything of the kind, but he was clear that solitary confinement was soul destroying.

Yours sincerely

Harry Arthurs, OC, OONt, dean and president emeritus, York University
Ann Cameron, PhD, professor emerita of developmental psychology
Max Cameron, PhD, professor of political science, UBC
Paul Copeland, CM, LLB, life bencher
Pauline Couture, president PCA, co-CEO, BlockFilmInc.
Myim Bakan Kline, B.A., law student, University of Toronto
Lynn McDonald, CM, PhD, LLD (hon), professor emerita
Ian Morrison
Debra Parkes, Professor and Chair in Feminist Legal Studies, Allard Law School
(Very Rev.) Lois Wilson, CC, retired senator, former moderator, United Church of Canada

Please reply to contact@abolishsolitary.ca

Limits to solitary confinement: Letter to Yukon’s premier and justice minister

Hon. Tracy-Anne McPhee’s response can be read at the end of this letter. Please scroll to the end of the page to read the embedded letter (a PDF scan)

Hon. Sandy Silver, premier;
Hon. Tracy-Anne McPhee, Minister of Justice
2 November 2019

Dear Premier Silver and Ms McPhee
re: Limits to solitary confinement

The Campaign for the Abolition of Solitary Confinement was pleased to see your decision to put limits on the use of solitary as stated in the UN Convention. We seek full abolition, but recognize the end of prolonged solitary as an important step.

We urge you to add one further category to the list of complete exemptions (pregnant inmates, etc.), the under-25s. Medical evidence is that the harm done to young people from solitary is worse and more long lasting than for adults, as the brain is still developing. This point was raised by medical experts in the debate over the legalization of cannabis, that the harm done by its use was greater for the under-25s—a point not acted on for obvious practical reasons, but a point clearly relevant here.

We would also point out that the 15-day cap, recognized now in several courts in Canada, is not based on evidence. It was a compromise, an acceptable limit for societies not used to having any limit. Part of the “Mandela Rules,” it should also be noted that Mandela himself never stated that solitary was acceptable if kept under 15 days. He simply said how awful it was. Sadly, there have been numerous cases of suicide, and many of attempted suicide and self-harm among inmates in solitary less than 15 days.

We would, accordingly, encourage you to look at reducing the cap to 10 and 5 days as your next steps. Whether or not you do, your planned legislation should reduce the harm of solitary. We congratulate you on your leadership and look to seeing the results.

Yours sincerely

(co-signed by)

Harry Arthurs, OC, OONt, dean emeritus, Osgoode Hall, president emeritus, York University
Paul Copeland, CM, LLB, life bencher
Hon. John Godfrey, CM, DPhil, former federal Cabinet minister
Hon. Keith Hoilett, retired judge
Lynn McDonald, CM, PhD, LLD (hon), professor emerita
Very Rev. Lois Wilson, CC, retired senator, former moderator, United Church of Canada

2019-13-31_LTR_Lynn-McDonald

To Sylvia Jones, minister of correctional services (Ontario)

Hon. Sylvia Jones MPP
Minister of Community Safety and Correctional Services
February 27, 2019

Dear Ms Jones

We heartily endorse the call by Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, to end solitary confinement in Ontario.

Since its inception in 2016, our organization has endorsed abolition. We do not see that partial measures will eliminate the horrendous injustices that occur. The over-representation of Indigenous inmates (already over-represented in the prison population), and use of solitary with the mentally ill and young have been known about for decades.

Solitary should not be treated as a politically partisan matter. These cases (Ashley Smith and Adam Capay and too many others) have occurred under both Liberal and P.C. governments.

The previous government saw to the adoption of new legislation, which has the prospect of reducing suicides, attempted suicides, and mental illness (new and exacerbated). However, as the Capay case has shown, provisions for reviewing cases can easily be ignored. In the tragic Ashley Smith case (her original offence: throwing crabapples at a postman), it was a trained psychologist who directed correctional officers not to enter her (solitary) cell and stop her from committing suicide.

Neither health care practitioners nor reviewers of cases have shown the necessary ability to detect which inmates might commit suicide and intervene.

The statistics contained in the Fegeau decision on Capay are disturbing: a substantial number of Ontario cases beyond the 15-day limit that the United Nations terms “torture.” The evidence of long-term harm and increased recidivism from solitary also point to the need for abolition.

Short of immediate abolition, we suggest that significant improvements could be made by:

  • its complete elimination for young people under 25, whose developing brains are more severely impacted by solitary; we note that a number of American jurisdictions have done this;
  • its complete elimination for pregnant women and nursing mothers.
  • immediate imposition of a 10-day limit on solitary, to be amended to 5 days at a fixed time.

Details that have appeared in the Capay material suggest the need for better training of correctional officers. We propose that the province encourage the establishment of college certificate courses for correctional officers–not given by the Ministry–but recognized by the Ministry with a higher rate of pay and rank.

Yours sincerely

Christopher Adamson, PhD, sociologist
Helen Breslauer, PhD, sociologist (retired)
Phyllis Creighton, OOnt, MA, editor
Paul Copeland, CM, LLB, life bencher
Stephanie DiGiuseppe, JD, barrister and solicitor
John Godfrey, CM, PC, Dphil, former MP
Susan James, MA, international development professional
David Kilgour, JD, former prosecutor and Cabinet minister
Robert Lackey, B.A., B.Ed. (retired)
Judith McCormack, LLM, former assistant dean of law
Lynn McDonald, CM, PhD, LLD (hon), professor emerita
Dorothy Goldin Rosenberg, MES, PhD, lecturer
Frans Schryer, PhD, professor emeritus
Bev Swerling, M.A., guidance counsellor
Rebecca Thornhill, PhD, cardiology technician
David Walsh, MBA, real estate developer
Helen Hansen, Tim Ellis, Elina Korchagina

Please reply to info@abolishsolitary.ca

Copy to chief commissioner, OHRC

To Ralph Goodale on Bill C-83

Hon Ralph Goodale, MP
Minister of Public Safety
January 29, 2019
cc: all federal MPs

Dear Mr Goodale

We appreciated meeting with Arif Virani, MP, Parliamentary secretary to the Minister of Justice and Attorney General, and understand that he has conveyed our views to you. We urge you to redraft Bill C-83. We do not believe that it will stand the test in court, and have every reason to believe that civil liberties organizations will take you to court on it.

Yes, four hours out of cell sounds a lot better than one or two, and should reduce the number of suicides, attempts, mental deterioration and self harm that typically result from solitary confinement. However, there is no evidence that four hours is a safe limit. Nor can we expect that inmates will get it: lockdowns are frequent and result in inmates not leaving their cells at all, even for an hour. We also realize that your department does not track this.

The whole “structured intervention unit” concept is a guess. Who has tried it? Your bill would permit any existing prison or part of a prison to be designated a “structured intervention unit,” so how will it be any improvement, for mental health and rehabilitation purposes?

We strongly recommend that you, instead, work on measures known to help: reduce the numbers sent to solitary (you have done this before–try more).

  • Make a firm exception for solitary for those under 25 years of age. It is known that the brains of persons under 25 are still developing, so that young inmates are liable to long-term damage from solitary.
  • Amend the classification system–no legislation required. Get rid of the “food slot” for communications. Such may be needed for extreme cases, but most inmates in solitary are not there because they are a danger to correctional officers, but because they fear harm to themselves, or have caused some kind of difficulty short of violence. Currently, to open the door of solitary cell requires the presence of 3 officers, 2 at the door, and one at a short distance away. Hardly necessary for most solitary inmates. Classify! To move an inmate in solitary requires the use of shackles–again, hardly necessary for someone who is no threat to others but fears for his own safety. Refine your regulations!
  • Better training for correctional officers. We recommend that CSC facilitate the creation of a certificate programme, to be given at a regular college, not connected with the department. However, this will require the department recognizing and rewarding the earning of such a certificate. Correctional officers are being called on to do more by way of rehabilitation–they need more training to do this. Current practice is rudimentary. Training is needed.

Yours sincerely

Michael Adorjan, PhD, associate professor, University of Calgary
Harry Arthurs, OC, OONt, dean and president emeritus, York University
Augustine Brannigan, professor, University of Calgary
Michael J. Bryant, LLM, executive director, CCLA
Ann Cameron, PhD, professor emerita of developmental psychology
Maxwell A. Cameron, PhD, professor of political science, UBC
Robert Clark, B,A., B.Ed., former deputy warden
Paul Copeland, CM, LLB, life bencher
Canon Phyllis Creighton, OOnt, MA, editor
Stephanie DiGiuseppe, barrister and solititor
Margaret Ferguson, B.Ed.
Catherine Fogarty, president, executive producer, Big Coat Media
Owen Gallupe, PhD, assistant professor, criminology
Hon John Godfrey, CM, former MP and Cabinet minister
Hon Keith Hoilett
David Kilgour, JD, former prosecutor and Cabinet minister
Suzette Mafuna, B.A. (hon.)
Lynn McDonald, CM, PhD, LLD (hon), professor emerita
Philip Rosen, BA, BCL, retired legal policy analyst
Susan Reid, PhD, professor of criminology, St Thomas’ University
Robert A. Stebbins, PhD, FRSC, professor emeritus
Bev Swerling, MEd, retired guidance counsellor, Toronto
Ian Wadell, QC, former MP
David Walsh, MBA, real estate developer
Andrew Woolford, professor, Dept. of Sociology and Criminology
Lois Wilson, CC, retired senator, former moderator, United Church of Canada

Comments on Bill C-83

Comments on Bill C-83, An Act to amend the Corrections and conditional Release Act and another Act, by the Campaign for the Abolition of Solitary Confinement, Paul Copeland, CM, LLB, life bencher, and Lynn McDonald, CM, PhD, LLD (hon, professor emerita.

Introduction: Members of the Campaign for the Abolition of Solitary Confinement are unconvinced of the government’s claim that “structured intervention units” will bring about the abolition of solitary confinement as claimed by the minister, or come close to that goal. The language is different, but there is nothing to ensure that the new measures (1) will be implemented properly (too many loopholes in practices, and failure to monitor); (2) even if implemented, that 2 hours of “meaningful human contact” will suffice to prevent mental deterioration, suicides and self-harm; and (3) can work without independent oversight.

The over-representation of Indigenous persons in the prison population generally, and in solitary in particular, is a continuing disgrace. We do not see this being remedied without abolition. Certainly recommendations from coroners’ reports and inquiries over the year intended to address these injustices have not been implemented.

Bill C-83’s stipulated four hours out of cell is clearly better than 1-2 hours, and should result in diminished mental deterioration, suicides, attempts, etc., but evidence is lacking that this time period (assuming it actually happens) will work. Can the minister cite examples in other jurisdictions that have used this provision and found improved results? We are aware of no evidence that being out of cell 4 hours a day is adequate to prevent the same mental deterioration, etc., and are aware of the numerous times that the out-of-cell time simply does not happen.

Pending acceptance of the abolition of solitary confinement, we recommend:

  1. The exception of inmates under 25 years of age, as people of that age, with brains still developing, are especially vulnerable to mental harm.
  2. The exception of inmates with mental illness; solitary should only be used as a temporary measure pending transfer to a health-care unit.
  3. The addition of a monitoring measure in Bill C-83 to ensure that the length of time in solitary is noted and reviewed.
  4. Amendment to preclude a “visit” entailing an inquiry of a correctional officer, or a peak through a food slot.

We see this bill as a step required by court rulings, but non adequate response to the issues of over-representation of Indigenous persons and the need to shift mentally ill inmates into treatment.

Reality check: The mandated “health care” visits conducted are not necessarily a visit. The health care worker may simply stop and ask the correctional officer on duty if any inmate has requested a meeting. If the answer is “No,” the health care person then leaves.

Reality check: Meaningful human contact for two hours a day, out of four hours out-of-cell. It is unclear how this will actually happen. CSC regards a quick exchange through a food slot to constitute “meaningful human contact.” We believe that meaningful human contact must include visual contact. The food slot approach must go. That a correctional officer or health care or other visitor must stoop down to a level like a mail slot effectively discourages visual contact. The food slot is a proven way to avoid meaningful human contact. Changes in the infrastructure are required: the mail slot/meal slot must go.

Realistic Classification. The use of solitary confinement, aka administrative segregation, is marred by the inappropriate classification of inmates. One size fits all. Hence inmates who request solitary for fear of attack are treated like inmates who have actually attacked someone or threatened to. Currently, there must be two correctional officers at the cell door whenever it is opened, and one to observe from a distance, to be able to call for assistance. This adds greatly to the cost of running solitary.

There is no reason why an inmate who is pursuing high school upgrading, who requests solitary because of a threat from another inmate, should have to give up that useful program. An inmate who can be trusted to be in a prison library, with staff and other inmates, for educational purposes should hardly need to be shackled and accompanied by two correctional officers to be moved anywhere. A dangerous inmate, yes, but why all inmates?

In fact, only about 2% of inmates in solitary are there for “disciplinary” reasons, i.e., an offence, and the use of solitary for such purposes is to end anyway under Bill C-83.

The classification system needs to be amended. This can be done short of legislation, but without such provision the current bill is inadequate.

About us: The Campaign for the Abolition of Solitary Confinement is a voluntary organization founded in 2016 to work for the complete abolition of solitary confinement in Canadian prisons, federal, provincial and territorial. Its members include law professors, criminal and immigration lawyers, retired judges, former Members of Parliament, criminologists, teachers, and university academics. See www.abolishsolitary.ca

The provisions of sections on health care professionals, advocacy services and access to recordings seem to be reasonable and we support them.

Reply from Minister Lalonde

Ministry of Community Safety and Correctional Services
Office of the Minister
25 Grosvenor 18th floor Toronto ON M7A Tel: 416-325-0408 MCSCS.Feedback@ontario.ca
MC-2018-391

Apr 09 2018                        By e-mail

Dear Dr. McDonald and Colleagues:

Thank you for your e-mail regarding recommendations for corrections reform. I appreciate the feedback provided and the collective insight which you and your colleagues have shared.

Ontario is working hard to modernize the justice system to make it more accessible, efficient and responsive to the needs of people across the province. As part of this modernization, my ministry will continue to move forward with the changes that are necessary to transform Ontario’s correctional services to create a system that is modern, focused on prevention, community-based and people-centred.

On February 20, 2018, I introduced Bill 195, the Correctional Services Transformation Act. Given the prorogation of the Legislature on March 16, 2018, the proposed legislation was reintroduced as Bill 6, the Correctional Services Transformation Act on March 21, 2018. If passed, Bill 6 will become the foundation for the boldest transformation of our corrections system in a generation. Our proposed changes are the result of tireless work with corrections staff, partners and several comprehensive expert reviews.

Our shared goal has always been the rehabilitation and reintegration of individuals within our system. This proposed legislation would result in better support and care for those in our custody, and improved outcomes for those under our supervision.

The proposed legislation, if passed, would modernize corrections by:

  • Setting rules around, and clearly defining, segregation by aligning with international standards and phasing out its use for vulnerable individuals.
  • Improving conditions of confinement by requiring minimum living standards that would apply to all adult inmates and bringing consistency to the system.
  • Increasing transparency and accountability by establishing an independent Inspector General to ensure compliance with the legislation and all policies.
  • Clearly defining via legislation, the health care services that incarcerated individuals should have access to, including treatment of disease or injury, health promotion, disease prevention, dental care, vision care, mental health and addictions care, and traditional Indigenous healing and medicines.
  • Better supporting rehabilitation and reintegration by requiring individualized, evidencebased assessments for every inmate.

In order to be successful in the coming years, our government has implemented the right supports, which has included more front-line staff, such as health care staff and 2,000 new correctional officers. In addition, there will be increased mental health support through the addition of new mental health nurses and enhanced staff training.

As part of our corrections transformation strategy, we are working with the Ministry of Health and Long-Term Care (MOHLTC) to transform health care services in correctional facilities. This will include exploring options to shift oversight and the provision of health care services to MOHLTC to improve health outcomes for correctional clients. Providing health care services for those with complex needs and ensuring continuity of care for those entering and leaving our system are key priorities.

These measures are part of our vision for a system that is built around dignity, human rights and accountability. We will continue working together with our dedicated correctional staff and partners to make this transformation a reality.

Thank you again for your e-mail.

Sincerely,

Marie-France Lalonde Minister

 

Bill 6, Correctional Services Transformation Act, 2018

(as submitted to the Standing Committee on Justice of the Ontario Legislative Assembly, April 2018)

See also Minister Lalonde’s April 9 letter to the Campaign for the Abolition of Solitary Confinement.


The Campaign for the Abolition of Solitary Confinement commends the Government of Ontario for the many improvements evident in Bill 6: the “transformation” claim is appropriate. Our critical remarks are confined to Parts V and VI on solitary confinement, under whatever name, segregation or restrictive placements.

These provisions, when enacted, will likely result in fewer suicides and attempts, less self-harm and mental deterioration, but it must be expected that all these will continue, for the harm of solitary confinement does not begin at 16 days. On solitary confinement, Bill 6 amounts to harm reduction, not transformation.

A prison sentence does not justify practices that harm health, as the sensory deprivation entailed in solitary confinement does. Meaningful human contact is essential. Human beings also need fresh air, sunlight, exercise, nutrition and sleep to remain in or regain health. We were pleased to see specification for these physical requirements (fresh air, etc.). Lack of meaningful human contact is no less, and probably more, harmful to health.

Bill 6 gives great attention to the details of improving the administration of solitary, to prevent flagrant abuses. It seems to have ignored some basic facts:

  1. There is substantial evidence, from many countries and over a long period of time, that the harm of solitary begins with only a couple of days. The contention that it is only lengthy or indefinite solitary that is harmful has been argued in Canadian courts, but not accepted in recent court rulings (2017 ONSC7491 and 2018 BCSC62; and see Bailey Fox, “You are not Alone: Ontario and British Columbia Invalidate Solitary Confinement,” Court.ca February 6 2018).
  2. The “Mandela Rules” were named after Nelson Mandela, who was made an honorary citizen of Canada, but he never sanctioned them. He described the horrors of solitary, without ever specifying that a limit of 15 days would prevent them.
  3. The UN Special Rapporteur who gave 15-days as the cut-off for solitary to constitute “torture” specified that harm can begin after as little as 48 hours (UN Special rapporteur Juan E. Mendez, 18 October 2011). Why should Ontario’s aim be only the prevention of torture?
  4. There is no evidence to show that any type of inmate (or person) benefits from solitary confinement.
  5. Human beings are social beings and require meaningful human contact to be healthy. Yet there is no provision in Bill 6 to ensure meaningful human contact. We note that the Irish Prison Reform Trust, which advocates the abolition of solitary confinement, calls for, as an intermediate measure, out-of-cell time of 8 hours for those in “restrictive regimes,” 12 hours out-of-cell time as the ultimate target for all prisoners (Behind the Door: Solitary Confinement in the Irish Penal System. By Irish Penal Reform Trust. February 2 2018).
  6. The fact that solitary confinement is used as a punishment, “disciplinary segregation,” is a clear admission that it is by its nature punitive, and not only for long or indefinite stays.

Monitoring: we recommend that the ministry publish comparative data both on patterns of use of solitary, number of inmates at what terms, type of inmate in solitary (notably Indigenous) and harms (suicides, attempts, self-harm, mental deterioration), to permit comparisons before and after implementation of the legislation. Data should be provided distinctly for disciplinary and non-disciplinary solitary.

Specifics:

Section 55 (1) provides for at least two visits per week, an improvement, but this falls far short of ensuring adequate meaningful human contact. We welcome the specific exclusion of communication through meal hatches counting as visits, in Section 63 (1) (b).

Section 57 (1) specifies that inmates in segregation retain all rights and privileges of inmates in the general population, except those that cannot be because of their confinement. It is well known that inmates in solitary in practice lose access to educational and rehabilitation programs. How will this be changed? Again, data are required to ascertain if the new wording in fact resulted in better practice.

Section 57 (3) Segregation prohibitions: we welcome the short list of exclusions from solitary: pregnant woman and those who recently gave birth; the chronically self-harming or suicidal; significant mental illness or developmental impairment or mobility problem.

We are concerned with the use of “chronically” with self-harming and suicidal. We know of no evidence that there is any cut-off in numbers of attempts. How many attempts at suicide must an inmate make before he or she is considered “chronically” suicidal?

Are Regulations intended to address this point?

Section 57 (3) (e)

We urge that another prohibition be added: any person under the age of 25. The brains of young people are still developing up to the age of 25, so that the sensory deprivation aspects of solitary are particularly harmful to the young. We note that, in considering an appropriate age of access for cannabis use, neurologists advised 25 years; that is, that the human brain is still developing up until that age.

Section 58 (1) The 15 day limit is an important improvement over existing practice, as is the 60-day maximum over a 365-day period, Section 59 (1); and the provision that an inmate’s transfer, Section 57 (4) does not constitute a break in the 60 days. However, provision is made for the superintendent to authorize longer solitary, for the same reasons as before. This provision calls for monitoring.

Section 60 Limits of non-disciplinary segregation; we note that the justification for the use of solitary uses the same language that has been inadequate for preventing abuses in the past.

Section 61 Review. The superintendent is now required to provide a written record of options that were exhausted before the decision for solitary was made, and must review, Section 61 (1). A visit is required, Section 61 (3).

We recommend that Bill 6 be amended to reduce the maximum length of stay of solitary, say, to 10 days after 3 years of operation of the bill, and to 5 days after 2 further years, to 40 days maximum for a year and then 20 days. This should apply also to disciplinary solitary, Section 74 (2).

This amendment would require also amendment of the times for review in Sections 65 and 66.

Part VI Discipline

Flogging, the paddle and bread-and-water diets were eliminated decades ago in Canada as punishments within prison. It is time for the use of solitary as a punishment to go. It contributes nothing to rehabilitation but to the contrary frequently if not always has deleterious consequences. All inmates in the Ontario prison system can be expected to be released, desirably not in worse condition than when they entered.

For the most serious offences committed in prison, criminal charges are available; for less serious loss of privileges should be the penalty.

Section 74 (2) 1. While disciplinary solitary remains on the books, we commend the provisions of Part VI to limit its terms.

Reducing the limits: We recommend that the same reduced limits proposed above for non-disciplinary solitary apply also to disciplinary. In each case it would require a new clause in the bill.

Reply from Marie-France Lalonde, Minister of Community Safety and Correctional Services

Ministry of Community Safety and Correctional Services
Office of the Minister
25 Grosvenor 18th floor Toronto ON M7A Tel: 416-325-0408 MCSCS.Feedback@ontario.ca
MC-2018-391

Apr 09 2018                        By e-mail

Dear Dr. McDonald and Colleagues:

Thank you for your e-mail regarding recommendations for corrections reform. I appreciate the feedback provided and the collective insight which you and your colleagues have shared.

Ontario is working hard to modernize the justice system to make it more accessible, efficient and responsive to the needs of people across the province. As part of this modernization, my ministry will continue to move forward with the changes that are necessary to transform Ontario’s correctional services to create a system that is modern, focused on prevention, community-based and people-centred.

On February 20, 2018, I introduced Bill 195, the Correctional Services Transformation Act. Given the prorogation of the Legislature on March 16, 2018, the proposed legislation was reintroduced as Bill 6, the Correctional Services Transformation Act on March 21, 2018. If passed, Bill 6 will become the foundation for the boldest transformation of our corrections system in a generation. Our proposed changes are the result of tireless work with corrections staff, partners and several comprehensive expert reviews.

Our shared goal has always been the rehabilitation and reintegration of individuals within our system. This proposed legislation would result in better support and care for those in our custody, and improved outcomes for those under our supervision.

The proposed legislation, if passed, would modernize corrections by:

  • Setting rules around, and clearly defining, segregation by aligning with international standards and phasing out its use for vulnerable individuals.
  • Improving conditions of confinement by requiring minimum living standards that would apply to all adult inmates and bringing consistency to the system.
  • Increasing transparency and accountability by establishing an independent Inspector General to ensure compliance with the legislation and all policies.
  • Clearly defining via legislation, the health care services that incarcerated individuals should have access to, including treatment of disease or injury, health promotion, disease prevention, dental care, vision care, mental health and addictions care, and traditional Indigenous healing and medicines.
  • Better supporting rehabilitation and reintegration by requiring individualized, evidencebased assessments for every inmate.

In order to be successful in the coming years, our government has implemented the right supports, which has included more front-line staff, such as health care staff and 2,000 new correctional officers. In addition, there will be increased mental health support through the addition of new mental health nurses and enhanced staff training.

As part of our corrections transformation strategy, we are working with the Ministry of Health and Long-Term Care (MOHLTC) to transform health care services in correctional facilities. This will include exploring options to shift oversight and the provision of health care services to MOHLTC to improve health outcomes for correctional clients. Providing health care services for those with complex needs and ensuring continuity of care for those entering and leaving our system are key priorities.

These measures are part of our vision for a system that is built around dignity, human rights and accountability. We will continue working together with our dedicated correctional staff and partners to make this transformation a reality.

Thank you again for your e-mail.

Sincerely,

Marie-France Lalonde Minister

 

To Ralph Goodale, Minister of Public Safety: 30 January 2018

Outdoor yard at Edmonton Institution. New rules say inmates will be given two hours rather than one hour of yard time. {photo: Office of the Correctional Investigator of Canada}

Hon Ralph Goodale, MP
Minister of Public Safety
30 January 2018

re: Abolition of solitary confinement

You and your staff, no doubt, as we, are studying the two recent decisions on solitary confinement (segregation). You will presumably redraft Bill C-56 before proceeding with it in the House, unless an appeal is planned.

The Marrocco decision (December 18, 2017), under appeal by CCLA, was inconsistent and unsatisfactory in many respects, but it was clear that the damage of solitary begins as early as 48 hours. The evidence for this is strong, and even acknowledged in the UN Special Rapporteur’s landmark statement of 2011. Yet the federal government is still fighting it. Justice Marrocco was not persuaded by much of its evidence, and we are appalled that such shabby material should be advanced by your department.

We, like the CCLA, are disappointed that the decision did not specify a limit, but would rely on the heretofore-undemonstrated ability of CSC officials to release an inmate from solitary before serious damage (suicide, self-harm, mental deterioration or the onset of mental illness) occurs. We suspect that there will be more litigation on this matter, if it is not addressed by better legislation.

We note, again, that reduction in the periods of use of solitary by CSC 2014-16 did not result in increased danger to correctional staff.

Justice Leask, on the BC Civil Liberties Association case (January 16, 2018), ruled that prolonged and indefinite solitary/segregation is unconstitutional. He did not specify a number of days, but considered that 15 was “sensible,” the compromise measure in the Mandela Rules. That would certainly reduce the harm of current solitary measures, but we continue to note the obvious: that the harm starts at 48 hours.

Some specifics:

  1. That solitary confinement is punitive is demonstrated by its continued use as a punishment for offences in prison; that it is limited to 30 days as a sanction (total 45 for multiple offences), while administrative segregation is (for the present) not limited, is an anomaly that should be ended. Disciplinary segregation should be abandoned, in favour of criminal proceedings in the case of serious offences and loss of privileges for lesser offences.
  2. On administrative segregation for an inmate’s self-protection, we recognize the need for physical separation for some inmates, but this should NEVER entail sensory deprivation. Sensory deprivation is cruel and inhumane, and amounts to torture –the only question being how soon it constitutes torture. It is harmful to all so treated and counter-productive to rehabilitation, the stated goal of Canada’s correctional system, at every level.
  3. Improvements such as two hours out of cell instead of one are not sufficient to avoid harm. Exercise in cages is not an alternative. Pending the abolition of solitary, we urge that CSC look to intermediate measures, such as substantial out-of-cell time and meaningful human contact.
  4. On the use of administrative segregation to protect prison staff, other inmates and the prison, we urge that CSC examine positive alternatives to segregation. Other jurisdictions have moved away from solitary, and European countries that incarcerate less have also been better in curbing solitary. In North America, Colorado is well in advance of Canada. Why not send officials there to see it, and/or invite officials from Colorado here to discuss their alternatives? New York banned the use of solitary for inmates under 18 and for pregnant women, and instituted other restrictions. Mississippi reduced its use of solitary by 75%. There are plenty of good examples.
  5. Programs for inmates in solitary/segregation: we urge that CSC do the necessary work to ensure that education and rehabilitation programs in fact happen; for First Nations inmates, access to elders and indigenous spiritual assistance as well.
  6. CSC is known to be set in its ways, its culture hostile to change, a problem we urge be addressed as a priority. Training workshops are used in other jurisdictions to bring in new programs, why not at CSC? The routine use of treatment plans for inmates and measures for de-escalating conflicts both require staff preparation and support.

Yours sincerely

[members of the Campaign for the Abolition of Solitary Confinement]


Send us an email to add your name to the letter: info@abolishsolitary.ca

To Marie-France Lalonde MPP, Minister of Community Safety and Correctional Services

Hon Marie-France Lalonde, MPP
Minister of Community Safety and Correctional Services (Ontario)
October 10, 2017

Dear Ms Lalonde

Thank you for your response of September 13, 2017 to our letter advocating the full-scale abolition of solitary confinement in the prison system. We were pleased to see your bold, long-term, vision, both on solitary and imprisonment itself, but wish to concentrate on the immediate goal: the abolition of solitary confinement.

We were puzzled by your statement about shifting health care services to the Ministry of Health and Long-term Care, apparently to be “explored.” Clearly it would be important to deal with this, if to be done, to be done without delay. It is not clear to us how the announcement of December 2016 of adding 239 health care staff “related to segregation and mental health” fits with the transfer of inmate health care itself to the Ministry of Health.

Maintaining the security of both staff and inmates of course is an important concern. We know of no evidence, however, that shows that segregation enhances security, particularly of staff. There has been a marked decline in the use of solitary in the federal system, from 474 inmates in 2015 to 298 inmates in 2016. Yet CSC reports, from data provided by wardens, that over 90% found no increase in incidents from the reduced use of segregation, or the use of alternatives for the mentally ill. The report concluded, in the grudging language of CSC, that “generally, the reduced use of administrative segregation has not had a negative impact on the safety and security of staff and inmates in the institutions.”

We urge you to do better than the caps of fifteen days/sixty days total recommended by Howard Sapers. Both limits would mean an improvement on the current system. We could expect fewer inmate suicides, attempts and incidents of self-harm, fewer deteriorating in mental health, and fewer previously healthy inmates developing new conditions of mental illness. All these harms, moreover, are known to occur with even very short stays in solitary. Nor is there any known benefit from the use of solitary.

We agree that some measures of temporary isolation will continue to be necessary, in cases of assault, and for the protection of some inmates (for example of former police officers). Yet these should be short, not entail sensory deprivation, 24-hour lights on and restriction of human contact to a slot in the door.

We say the time has come to end the use of solitary confinement. It was instituted with the naive hope that inmates would, separate from criminal elements in the general prison population, use their time in a separate cell to reflect on their transgressions and reform. It did not happen, and why it did not has been known for more than a century. Administrative segregation became a convenient solution for wardens for trouble makers rather than dangerous offenders. Inmates who commit new crimes can be dealt with in the regular court system.

We share the view that incarceration, as deprivation of liberty, is a legitimate punishment for crime. The use of solitary confinement in addition is not justified. That it has been used disproportionately for the mentally ill, indigenous persons, racial minorities and youth adds to the reasons for its abolition.

We would like to discuss these matters with you. If you would be willing to meet with us (several members of our organization), please have an assistant contact us (email given below).

Yours sincerely

[members of the Campaign for the Abolition of Solitary Confinement]